ALL of us want to take part in decisions that affect our daily lives. When a conflict takes place at a government office or among family members, people try to reach a settlement through negotiations, even when their cases are in court. In many countries, judicial systems can no longer cope with their caseload or offer cost-effective procedures for resolving disputes outside the traditional or formal system. Furthermore, the traditional legal system is felt to be adversarial, costly, unpredictable, rigid, over-professionalized, damaging to relationships and limited to narrow remedies compared to realistic problem solving.
These days, a new term “alternative dispute resolution” (ADR) has been coined, and its system introduced, in the US in a drive to find alternatives to the traditional legal system. However, for the Muslims this concept is not new, as it can be found in the Holy Quran. ADR as a term covers the whole range of alternatives to litigation or arbitration, which involves third party intervention to assist resolution of a dispute. In some writings, arbitration is also referred to as a part of ADR.
In any judicial system, the adjudicator, by custom or duty, attempts to settle claims by conciliation. ADR helps broaden the criteria by which appropriate methods of dispute resolution can be judged, including the role of the legal system itself.
Among ADR techniques, mediation has proved to be the most flexible, powerful and user-friendly approach, based on the fundamental principle of a neutral third person assisting parties to find a solution to their dispute.
Mediation is the most commonly used ADR process. Many people now use the two words ADR and mediation interchangeably, although the former encompasses a range of techniques only one of which is mediation.
The need for an alternative to litigation and arbitration is broadly accepted, particularly because of the problem of time and cost, and also because of the probability of any adversarial process leaving wounds that damage relationships.
Negotiations without intervention of the third party (mediator) is usually possible when the parties can identify and agree on what issues are in dispute. Their interests, goals and needs are not entirely incompatible and they are constrained by time. Whereas the process of litigation and arbitration looks back to the past and the decision is imposed and largely based on history. With ADR, the focus is primarily on the future and on party interests, which are not limited to legal issues. ADR techniques work because the third party can help eliminate or reduce the effect of some main obstacles to successful negotiation.
Mediation is an ADR technique, which enables the parties to resume or sometimes begin negotiations. The very presence of the mediator changes underlying dynamics of the negotiating process. The mediator brings negotiating, problem-solving and communication skills to the process, deployed from a position of independence and neutrality, making real progress possible where direct negotiations have stalled. The general definition of mediation is: “Mediation is a voluntary, non-binding, private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement.”
Learning mediation skill is a journey of understanding the actions and reactions of the parties and also understanding yourself. You cannot assist disputants to think clearly and wisely unless you are not clear within yourself. The mediator works directly with disputants teaching them communication and problem-solving skills so that they may resolve their conflict themselves. This requires a range of skills such as understanding the disputants, communication, managing the process, investigation of the dispute, reality testing, reflecting, making the parties understand real problem and problem-solving. The mediator should be able to separate people from problems, keep the focus of the parties on the interest, generate variety of options for parties to work on and bring about a solution based on objective standards.
Alternate dispute resolution (ADR) has these days become a buzzword, be it a disagreement occurring in the corporate or government sector or in commercial and family disputes. In Pakistan the term ADR has been introduced into many laws including the Civil Procedure Code, commercial (direct and indirect taxes), family laws etc, through different amendments, but so far has remained not-so-effective because of its non-mandatory nature as far as courts are concerned.
In commercial laws, a procedure is given to formulate committees comprising people from private and public sectors to act as mediators to solve tax disputes. These committees work with the disputants, arrive at a solution and make appropriate recommendation to the tax authorities. This is a good move by the government to minimize the backlog of cases and avoid litigation and is also successful to some extent. But the question here arises: are these committee members equipped with necessary skills to tackle such disputes? No matter how much one reads about this particular subject, the beauty lies in the skill, which is applied to make the participants arrive at a solution themselves, and to create a win-win situation for both. It is therefore recommended that judges and mediators should be equipped with necessary skills. Ongoing training of ADR is the need of the hour.
ALL of us want to take part in decisions that affect our daily lives. When a conflict takes place at a government office or among family members, people try to reach a settlement through negotiations, even when their cases are in court. In many countries, judicial systems can no longer cope with their caseload or offer cost-effective procedures for resolving disputes outside the traditional or formal system. Furthermore, the traditional legal system is felt to be adversarial, costly, unpredictable, rigid, over-professionalized, damaging to relationships and limited to narrow remedies compared to realistic problem solving.
